This article was reprinted with permission from the 4th Quarter 1998 issue of VERDICT.
"Chaos would result if the legal community could not depend on the truthfulness of declarations of service of process. Public policy requires that it be regarded as serious, with consequences sufficiently adverse to act as deterrence . . . . Service of process is the means by which a court having jurisdiction over the subject matter asserts its jurisdiction over the party and brings home to him reasonable notice of the action. It is an indispensable element of due process of law." Kappel v. Bartlett (1988) 200 Cal. App.3d 1457, 1464, 246 Cal. Rptr. 815 (citing Judicial Council of Cal. com., 14 West's Ann. Code Civ. Proc. (1973) ed.) 413.10, p. 541, and 2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction, 84, p. 454) (citations omitted.)
Despite these truisms, anyone who regularly represents defendants has endured the chore of demonstrating why a court clerk's entry of default should be set aside. Often, the default has resulted from a false, misleading, or perhaps perjurious, declaration of service of process.
In the opinion of one process server with years of experience both in the field and in training others, process servers regularly execute and file false or incorrect proofs of service for numerous and wifely varied reasons: inadequate training or knowledge of the law, a high volume of assignments, payment only upon successful completion of service of process. None of these reasons provide a justification to falsely execute a proof of service upon which the parties, their attorneys, and the courts will rely.
More frustrating is explaining to the client why they must incur attorneys' fees and costs resulting from someone else's fraud. However, these clients should be advised that they are not without recourse because a process server's perjurious or false statements are actionable. Although there is no civil action for perjury, the process server's conduct would support other claims upon which relief can be obtained: Abuse of Process, Negligence, and Negligent Infliction of Emotional Distress.
Process Servers are Subject to Strict Regulation
"The Legislature, recognizing the importance of [their] function, has subjected process servers to regulation in the Business and Professions Code section 22350 et seq." Kappel, 200 Cal. App.3d at 1464. Process servers are required to file a registration certificate in order to regularly serve process. Bus. & Prof. Code 22350. That "certificate of registration may be revoked or suspended whenever it has been determined that the registrant has made a service of process, including service completed by an employee or independent contractor of the registrant which does not comply with the provisions of law governing the service of process in this state or constitutes an improper service of process not amounting to a violation of law." Bus. & Prof. Code 22358.
Vicarious liability for an individual process server's misdeeds is legislatively mandated: "A registrant shall be responsible at all times for the good conduct of his or her employees acting within the course or scope of their employment, and any person acting as an independent contractor within the course or scope of the agency relationship with the registrant." Bus. & Prof. Code 22356.
Abuse of Process
An action for abuse of process is a cause of action "long recognized at common law but infrequently utilized." Kappel, 200 Cal. App.3d at 1463. "To establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner." Coleman v. Gulf Ins. Group, (1986) 41 Cal.3d 782, 792, 226 Cal. Rptr. 90.
The requirements to prove an ulterior motive differ in the case law. Some collateral, illegal objection in executing a false declaration would suffice. Golden v. Dungan (1971) 20 Cal. App.3d 295, 97 Cal. Rptr. 577. However, malice or an ulterior motive may be "inferred from the wilful abuse of the process." Tranchina v. Arcinas (1947) 78 Cal. App.2d 522, 526, 178 P.2d 65; 5 Witkin, Summary of Cal. Law (9th ed. 1988), 463, et seq., p. 550.
The court in Kappel was faced with a "civil matter [which] proceeded to judgment by default, however, because the process server entrusted to serve the summons and complaint allegedly did not do so, yet falsely executed a declaration that he did." Id. at 1463. Upon this basis, and the policies set forth above, the court approved the application of the abuse of process cause of action to the situation where a process server falsely executes a proof of service. Id.
A false, fraudulent, or perjurious declaration of service of process misuses "the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice." Meadows v. Bakersfield Savings & Loan Assoc., (1967) 250 Cal. App.2d 749, 753, 59 Cal. Rptr. 34, 37. Because the process server acts with the imprimatur of the court, his misconduct cannot be tolerated.
Negligence and Infliction of Emotional Distress
"There might be circumstances short of a knowing execution of a false declaration of service where, due to lack of care in service of process, a party injured thereby could state a cause of action for negligence or negligent infliction of emotional distress." Kappel, 200 Cal. App.3d 1467. In Slaughter v. Legal Process & Courier Service (1984) 162 Cal. App.3d 1236, 1249, 209 Cal. Rptr. 189, the court reasoned:
It is foreseeable that improper service of process, combined with subsequent falsification of an affidavit, could result in a default judgment against the person served and in emotional as well as financial injury to him. In addition, the policy of encouraging process servers to perform their function responsibly is a found one, justifying imposition of a legal duty of care towards the individual being served. The judicial system relies upon process servers to ensure that the due process rights of a defendant are protected, and potentially severe consequences are likely to result for a defendant when a process server does not perform his task as prescribed by law.
Most people consider claims for infliction of emotional distress in the context of witnessing a family member suffer injury, e.g., being hit by a car. However, the requirement that the injured party be contemporaneously aware of the negligence of the person causing that injury has long been discarded. See Mobaldi v. Board of Regents (1976) 55 Cal. App.3d 573, 583, 126 Cal. Rptr. 720, disapproved on other grounds by Baxter v. Superior Court (1976) 19 Cal.3d 461, 138 Cal. Rptr. 315, and Elden v. Sheldon (1988) 46 Cal.3d 267, 250 Cal. Rptr. 254. Therefore, learning of the entry of defaults days or months after the process server's fraud will not defeat the claim for infliction of emotional distress.
Punitive Damages Are Also Available
Civil Code Section 3294 allows the recovery of punitive damages upon any obligation not arising from contract where it is "proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." California Civil Code Section 1427 explains that "An obligation is a legal duty, by which a person is bound to do or not do a certain thing." Under Section 1428, such an obligation can arise from a contract or by operation of law. "An obligation arising from operation of law may be enforced in a manner provided by law, or by civil action or proceeding." Id. The process server's duty to act carefully is thus created both by common law and by the above-referenced provisions of the Business & Professions Code.
The depravity of the process server's misconduct fulfills all the requirements for the penalty of exemplary damages. The intentionally false process server could readily be found guilty of malice, fraud or oppression in the exercise of his sole duty - the truthful service of process. See Cal. Code Civ. Proc. 3294(c), BAJI 14.71.
Most times, the potential recovery of costs incurred in setting aside a default judgment may not justify the incursion of additional expense in "discovering" the facts justifying an award of punitive damages. However, in an appropriate case, such as repeated acts of misconduct by a particular process server or the gross impropriety of the service of process at issue, punitive damages are available upon adequate proof. Given the number of defaults and default judgments that are set aside because of process server falsity or fraud, there is a strong possibility judges will be willing to punish the offending process server and set an example for others.
The Resulting Judgment Is Easily Enforced
The statutory duties imposed on registered process servers include posting a bond to serve as a fund for their misdeeds which cause damage. Bus. & Prof. Code 22353. Business and Professions Code Section 22357(a) specifically provides, "Any person who recovers damages in any action or proceeding for injuries caused by a service of process which was made by a registrant and did not comply with the provisions of law governing service of process in this state may recover the amount of the damages from the bond required by Section 22353." Section 22353 requires a surety bond in the amount of $2,000. Therefore, the first $2,000 of the client's costs can be easily recouped, perhaps in a small claims action.
The Litigation Privilege Does Not Bar An Action Against the Process Server
Process servers may claim that their declarations are reasonably related to the litigation and therefore subject to the absolute litigation privilege enunciated in Civil Code Section 47. "A privileged publication or broadcast is one made: . . . (b) In any (2) judicial proceeding." This language has been construed to cover "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection of logical relation to the action." Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 266 Cal. Rptr. 638 (citations omitted).
A line of appellate cases previously carved out an array of communications from the protection of the absolute litigation privilege when the communications are not made in the "interests of justice." See Bradley v. Hartford Acc. & Indem. Co.(1973) 30 Cal. App.3d 818, 826, 106 Cal. Rptr. 718; Earp v. Nobbman (1981) 122 Cal. App.3d 270, 284, 175 Cal. Rptr. 767 ("Only if this requirement has been satisfied, is it appropriate for the courts to define liberally the scope of the term 'judicial proceeding' and the persons who should be regarded as litigants or other participants;") and other cases cited in Silberg, supra. 50 Cal.3d at 219.
The evolution of the litigation privilege and the regulation of process servers demonstrates that the litigation privilege is inapplicable to process servers' misdeeds. "It is assumed that the Legislature has in mind existing laws when it passes a statute." Estate of McDill (1975) 14 Cal.3d 831, 837-838, 122 Cal. Rptr. 754, 758 (citations omitted). Additionally, it cannot be presumed that the Legislature performs idle acts, or that courts may construe its statutory enactments to be rendered superfluous. Shoemaker v. Myers (1990) 52 Cal.3d 1, 22, 276 Cal. Rptr. 303. Moreover, in the construction and interpretation of statutory language, every word must be "presumed to have been used intelligently and designedly for an express purpose by the Legislature." Chavez v. Sargent (1959) 52 Cal.2d 162, 339 P.2d 801. "It is not to be presumed that the Legislature used language in a sense which would render nugatory important provisions of the statute." Select Base Materials, Inc. v. Board of Equalization (1959) 51 Cal.2d 640, 335 P.2d 672, 676.
The litigation privilege was first enacted in 1872 and has undergone only amendment since. None of those amendments are relevant here (1873-1874 – amending language of subdivision (2) and grammatical changes to subdivision (3); 1895 - amending subdivision (4) regarding reports in public journals; 1927 - adding internal numbering and a provision to subdivision (2); 1945 - amended to cover broadcasts as well as publications, and in subdivision (4) deleting "without malice"; and 1979 - adding subsection (4) of subdivision (2) relating to other proceedings authorized by law and reviewable by mandate.)
The sections of Business and Professions Code discussed above were all enacted in 1971, well after Civil Code Section 47. They were only slightly amended in 1982 - to delete duplicate provisions of the Bond and Undertaking Law, and to preclude cash deposits in lieu of bonds (22357(b)).
Moreover, Business and Professions Code Section 22357(a) specifically contemplates the recovery of damages in "an action or proceeding for injuries caused by a service of process." Allowing the recovery of those damages "from the bond required by Section 22353" provides additional evidence that the Legislature intended to allow an "action or proceeding" against the process server separate and apart from an action on the bond. Such actions or proceedings would be rendered superfluous if all of a process server's statements were protected by the absolute litigation privilege. Similarly, the vicarious liability imposed by Business and Professions Code Section 22356 would be meaningless because there could no underlying liability. If process servers' false and fraudulent statements were shielded by the litigation privilege, the entire scheme of regulation would be fanciful at best.
Read together, the only way to reconcile the litigation privilege with the later-enacted regulation of process servers must be to except false, fraudulent, or otherwise unlawful proofs of service from the protection of the absolute litigation privilege. For these reasons and the policy reasons explained above, Civil Code Section 47 should not bar an action against a process server for damages resulting from a false or fraudulent service of process.
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